Mossbarger v. Commissioner of the Social Security Administration

Filing 25

REPORT AND RECOMMENDATIONS: It is recommended that the Plaintiffs statement of errors be sustained to the extent that the case be remanded to the Commissioner for further proceedings - objections due w/in fourteen (14) days of the date of this Report. Signed by Magistrate Judge Terence P. Kemp on 08/14/2015. (sr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Brandon M. Mossbarger,

:

Plaintiff,

:

v.

:

:
Commissioner of Social Security,
Defendant.

Case No.

2:14-cv-1257

JUDGE JAMES L. GRAHAM
Magistrate Judge Kemp

:

REPORT AND RECOMMENDATION
I.

Introduction

Plaintiff, Brandon M. Mossbarger, filed this action seeking
review of a decision of the Commissioner of Social Security
denying his applications for disability insurance benefits and
supplemental security income.

Those applications were filed on

March 14, 2011, and alleged that Plaintiff became disabled on
September 20, 2010.
After initial administrative denials of his claim,
Plaintiff was given a video hearing before an Administrative Law
Judge on February 26, 2013.
the ALJ denied benefits.

In a decision dated March 15, 2013,

That became the Commissioner’s final

decision on July 10, 2014, when the Appeals Council denied
review.
After Plaintiff filed this case, the Commissioner filed the
administrative record on November 10, 2014.

Plaintiff filed his

statement of specific errors on March 6, 2015, to which the
Commissioner responded on June 10, 2015.

A reply brief was filed

on June 28, 2015, and the case is now ready to decide.
II.

The Lay Testimony at the Administrative Hearing

Plaintiff, who was 29 years old at the time of the
administrative hearing and who has his GED, testified as follows.
His testimony appears at pages 44-67 of the administrative

record.
Plaintiff last worked at a packing plant, which is where he
sustained an injury.

He worked for several months after the

injury at a sedentary job but he was unable to do it successfully
and was ultimately let go.

The injury involved his left foot.

Prior to that job, he had worked at a car dealership, doing some
administrative tasks for the service department and photographing
cars for sale.
Since being injured, Plaintiff has undergone physical
therapy, ultrasound treatment, and been treated with a dorsal
column stimulator, none of which helped.
it only eases his pain somewhat.

He takes medication but

He cannot walk normally and

must use a cane or other balancing aid.

The pain was constant,

and the only thing which seemed to help was lying in bed with his
foot elevated and then taking enough medication so he could
sleep.

He was not able to wear regular shoes and he had fallen

several times.
Plaintiff also testified that the pain in his foot radiated
up his leg as far as his knee.

His foot had been discolored

since the injury, but temperature changes in the foot came and
went daily.

He was taking both Oxycodone and Ibuprofen for pain,

and his medication made him drowsy and interfered with his
concentration.

He was unable to do any household chores but

could do a little grocery shopping using a scooter.
As far as physical activity is concerned, Plaintiff said he
could stand for five or ten minutes and sit for a few hours, but
after sitting he would need to lie down.
but it was exhausting.
pounds.

He could walk a block

Plaintiff said he could lift 15 or 20

His injury had affected his social life and made him

irritable.

He had attempted to get mental health treatment but

was unable to afford it.

He was able to message family members

on Facebook and watched television occasionally
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III.

The Medical Records

The medical records in this case are voluminous.

The Court

will summarize them here as they relate to Plaintiff’s statement
of errors.
The file includes a number of documents submitted to the
Ohio worker’s compensation authorities.

The claims allowed by

that agency included a crush injury and contusion of the left
foot, mononeuritis of the lower leg, and a lateral plantar nerve
injury.
Plaintiff had also asked for allowance of a psychological
injury.

Dr. Hawkins examined him with respect to that request

and concluded that Plaintiff was not clinically depressed.
230-38).

(Tr.

Dr. Richetta, who had also done a psychological

evaluation of Plaintiff, responded to that letter on August 15,
2011, noting his disagreement and concluding that Plaintiff was
suffering from major depressive disorder as a consequence of his
industrial injury and that it precluded his return to work as a
laborer.

Plaintiff’s symptoms included sadness with tearful

episodes, suicidal ideation, anger, irritable mood, reduced
concentration, indecisiveness, reduced energy, and insomnia.
(Tr. 299-300).

Dr. Richetta’s evaluation report (Tr. 525-31)

indicated that Plaintiff presented as sullen and disgruntled, and
that Plaintiff had not been helped by a psychiatric
hospitalization in March of 2011 (which is documented at Tr. 799803), and that Plaintiff reported tearful episodes daily.

He had

been angry, depressed, and suicidal prior to the hospitalization.
His sleep was impaired by both pain and depression.

Plaintiff

had not coped well with the change in lifestyle brought about by
his physical injury.

Dr. Richetta diagnosed major depressive

disorder which caused “clinically significant distress or
impairment in social, occupational, or other important areas of
functioning.”

Dr. Richetta thought Plaintiff would benefit from
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psychotherapy and medication.

An assessment note from Adena

Physicians Practice Group dated April 7, 2011, also shows a
diagnosis of major depressive disorder.

(Tr. 345).

Another psychological assessment was done in December, 2011,
by Dr. Briggs.

Plaintiff reported anxiety and anger.

able to manage his own personal care and hygiene.
socializing with a few friends.

He was

He did some

Dr. Briggs observed that

Plaintiff was “obviously anxious and distraught” and was
dependent on his mother for his daily well-being.

He “presented

visible evidence that he is experiencing emotion, mental and day
to day functional difficulties.”

Dr. Briggs diagnosed major

depression of moderate severity as well as an anxiety disorder
and an avoidant personality disorder and rated Plaintiff’s GAF at
60.

His prognosis was fair, and he was impaired in his ability

to understand, remember, and carry out instructions, to carry out
tasks, and to respond appropriately to others in a work setting.
He was also not totally capable of functioning in a stressful
work situation.

(Tr. 2379-88).

There are a large number of records from Hillsboro Urgent
Care.

They generally reflect a diagnosis of reflex sympathetic

dystrophy which was causing severe pain.

An independent medical

examination done on June 16, 2011 by Dr. Steiman showed pain in
the left foot, occasionally radiating to the knee, and increased
by weight-bearing.

Plaintiff needed assistance to stand, change

positions, walk, climb stairs, do housework, and shop.

After

detailing the course of treatment, Dr. Steiman concluded that
Plaintiff did not have Complex Regional Pain Syndrome (formerly
known as reflex sympathetic dystrophy) of the left foot.
314-21).

(Tr.

Dr. Freeman, who was treating Plaintiff for his foot

injury, apparently disagreed, reporting in an October 25, 2011
letter that Plaintiff was still having pain, was not helped by
Vicodin, experienced worsening depression with Klonopin, had a
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mild purplish discoloration of the left foot, and had no movement
in his fourth and fifth toes.
recommended.

A dorsal column stimulator was

(Tr. 703-04).

Dr. Manuel was another one of Plaintiff’s treating
physicians.

There is a note dated May 11, 2011, in which Dr.

Manuel reported that Plaintiff was restricted to sitting jobs
only.

(Tr. 771).

Manuel’s notes.

That conclusion appears elsewhere in Dr.

Dr. Manuel also made a number of comments to the

effect that Plaintiff was to be off work until further
evaluation.

He completed a functional capacity assessment in

August, 2012, on which he noted that Plaintiff had a poor
prognosis, suffered from depression and anxiety, could walk only
half a block, could sit only two hours before needing to change
positions, could stand for only five minutes, could not sit,
stand, and walk in combination for more than six hours, needed to
change positions at will, would have to take frequent unscheduled
work breaks, had to use a cane when walking, could not lift over
ten pounds, and would miss more than four days of work per month.
Dr. Manuel also said, however, that Plaintiff could tolerate the
stress of a low-stress job.

(Tr. 2474-78).

An independent medical examination took place on November 2,
2012.

The examiner, Dr. Gula, reported that Plaintiff’s symptoms

included pain in the left foot, along with discoloration, and
difficulty walking.

He walked with an abnormal gait and could

not toe and heel walk.

His foot was numb from the third to the

fifth toes and he had marked weakness of the left foot.

He also

exhibited difficulty standing from a seated position and sitting
from a standing position.

He walked with a cane at all times.

Dr. Gula concluded that Plaintiff had a “20% whole person
impairment.”

(Tr. 2451-56).

In addition to these records, there are evaluations done by
state agency physicians.

Dr. Tangeman concluded on June 23,

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2011, that Plaintiff had no severe psychological impairment and
Dr. Gahman said on June 28, 2011 that Plaintiff could do a
limited range of light work with no more than four hours of
standing and some postural limitations.

Dr. Bolz concurred with

that assessment on December 16, 2011, and on February 3, 2012,
Dr. Orosz stated that Plaintiff had some psychologically-based
limitations in the areas of maintaining attention and
concentration for extended periods, keeping a schedule,
maintaining regular attendance, being punctual, working in
proximity to others, interacting with the public and supervisors,
responding to changes in the work setting, and handling work
stress.

He thought Plaintiff would need a work environment with

little change, with only superficial interaction with others, and
without strict production quotas, pace, and standards.
IV.

The Vocational Testimony

Robert Brodzinsky was the vocational expert in this case.
His testimony begins on page 67 of the administrative record.
Mr. Brodzinsky was asked to categorize Plaintiff’s past
work.

He said that one of the jobs which Plaintiff held at the

car dealership was film photographer, which was a light, skilled
position.

The others were car rental clerk, a semiskilled

position usually performed at the light exertional level, and
service writer, which was light and skilled.

Plaintiff performed

these jobs at the medium level, however.
Mr. Brodzinsky was then asked some questions about a
hypothetical person of Plaintiff’s age, education, and work
experience who could lift at the light exertional level but who
was limited to standing no more than two hours per day.

The

person could also push and pull occasionally as well as
occasionally climb stairs and ramps, could stoop, kneel, crouch,
and crawl frequently, could not climb ladders, ropes, or
scaffolds, and could not be exposed to hazardous machinery or

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unprotected heights.

Further, he could do only simple, routine,

repetitive tasks in a work environment where changes occurred
only occasionally and where there was only occasional interaction
with coworkers and the public.

Mr. Brodzinsky said that such a

person could not do Plaintiff’s past work but could be employed
as a production assembler, electronics worker, and small products
assembler.

He gave numbers for each job in the State and

national economies.

If the person were limited to sedentary work

with the same restrictions, that person could work as a final
assembler, a surveillance system monitor, or a film touchup
inspector.
Finally, Mr. Brodzinsky testified that someone who was off
task 20% of the time could not be competitively employed.

The

same would be true for someone who missed three days of work per
month.

The need to keep one leg elevated 18 inches off the floor

would reduce the numbers of the jobs which he identified but
would not eliminate them altogether.
V.

The Administrative Law Judge’s Decision

The Administrative Law Judge’s decision appears at pages 1933 of the administrative record.

The important findings in that

decision are as follows.
The Administrative Law Judge found, first, that Plaintiff
met the insured status requirements of the Social Security Act
through December 31, 2015.

Next, he found that Plaintiff had not

engaged in substantial gainful activity since his alleged onset
date of September 20, 2010.

Going to the second step of the

sequential evaluation process, the ALJ determined that Plaintiff
had severe impairments including major depression, anxiety
disorder, personality disorder, disorders of the left foot, and
chronic pain disorder.

The ALJ also found that these impairments

did not, at any time, meet or equal the requirements of any
section of the Listing of Impairments (20 C.F.R. Part 404,

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Subpart P, Appendix 1).
Moving to step four of the sequential evaluation process,
the ALJ found that Plaintiff had the residual functional capacity
to perform work at the sedentary exertional level with certain
restrictions.

He could never climb ladders, ropes, or scaffolds;

could occasionally climb ramps and stairs; could frequently
stoop, kneel, crouch, and crawl; could not be exposed to
hazardous machinery or operational control of moving machinery;
could not be exposed to unprotected heights; could only
occasionally push or pull using his left leg; and was limited to
the performance of simple, routine, repetitive tasks in a work
environment where changes occurred on no more than an occasional
basis and where there was no greater than occasional interaction
with coworkers and the general public.
The ALJ next concluded that Plaintiff could not do his past
relevant work.

However, he also determined that Plaintiff could

do certain jobs identified by the vocational expert, including
final assembler, surveillance system monitor, and monitor film
inspector.

The ALJ further found that such jobs existed in

significant numbers in the State and national economies (5,000
and 175,000, respectively).

Consequently, the ALJ concluded that

Plaintiff was not entitled to benefits.
VI.

Plaintiff’s Statement of Specific Errors

In his statement of specific errors, Plaintiff raises these
issues: (1) the ALJ committed legal error by failing to address
the opinion of Dr. Richetta; (2) the hypothetical question posed
to the vocational expert did not exactly reflect the residual
functional capacity found by the ALJ; and (3) the ALJ erred in
his assessment of the treating source opinion from Dr. Manuel.
These issues are evaluated under the following legal standard.
Standard of Review.

Under the provisions of 42 U.S.C.

Section 405(g), "[t]he findings of the Secretary [now the

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Commissioner] as to any fact, if supported by substantial
evidence, shall be conclusive. . . ."

Substantial evidence is

"'such relevant evidence as a reasonable mind might accept as
Richardson v. Perales, 402

adequate to support a conclusion'"

U.S. 389, 401 (1971) (quoting Consolidated Edison Company v.
NLRB, 305 U.S. 197, 229 (1938)).
scintilla.'" Id.
Cir. 1976).

It is "'more than a mere

LeMaster v. Weinberger, 533 F.2d 337, 339 (6th

The Commissioner's findings of fact must be based

upon the record as a whole.

Harris v. Heckler, 756 F.2d 431, 435

(6th Cir. 1985); Houston v. Secretary, 736 F.2d 365, 366 (6th
Cir. 1984); Fraley v. Secretary, 733 F.2d 437, 439-440 (6th Cir.
1984).

In determining whether the Commissioner's decision is

supported by substantial evidence, the Court must "'take into
account whatever in the record fairly detracts from its weight.'"
Beavers v. Secretary of Health, Education and Welfare, 577 F.2d
383, 387 (6th Cir. 1978) (quoting Universal Camera Corp. v. NLRB,
340 U.S. 474, 488 (1951)); Wages v. Secretary of Health and Human
Services, 755 F.2d 495, 497 (6th Cir. 1985).

Even if this Court

would reach contrary conclusions of fact, the Commissioner's
decision must be affirmed so long as that determination is
supported by substantial evidence.

Kinsella v. Schweiker, 708

F.2d 1058, 1059 (6th Cir. 1983).
A.

Dr. Richetta’s Opinion

Plaintiff’s first argument deals with Dr. Richetta’s
opinion.

He asserts, briefly, that the ALJ erred by not

explicitly considering Dr. Richetta’s opinion, and that this
failure violated 20 C.F.R. §404.1527(b) and (c).

The

Commissioner responds that the ALJ did not have to discuss each
medical opinion explicitly, and then argues that any failure to
do so was harmless because the ALJ essentially adopted Dr.
Richetta’s opinion.

In reply, Plaintiff argues that Dr.

Richetta’s opinion is more restrictive than the residual
functional capacity which the ALJ assigned to Plaintiff, so that
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any error was not harmless.
While it is correct that an ALJ need not discuss each and
every item of evidence in the record, at the same time, an ALJ is
required to give consideration to all of the medical opinions in
the file.

See 20 C.F.R. §404.1527(b)(“In determining whether you

are disabled, we will always consider the medical opinions in
your case record...”).

When it appears that an ALJ completely

failed to consider a medical opinion, remand can be appropriate.
“‘An ALJ’s failure to consider an entire line of evidence falls
below the minimal level of articulation required.’”

Williamson

v. Comm’r of Social Security, 2013 WL 394572, *3 (S.D. Ohio Jan.
31, 2013), quoting Diaz v. Chater, 55 F.3d 300, 307 (7th Cir.
1995).

Here, the complete absence of any mention of Dr.

Richetta’s evaluation report and the letter written rebutting Dr.
Hawkins’ report - which the ALJ discussed and gave some amount of
weight to, see Tr. 28 - strongly suggests that the ALJ gave Dr.
Richetta’s views no weight whatsoever and totally failed to
consider them.

That is legal error.

The question then becomes

whether the error is harmless.
The Commissioner claims that there is no difference between
Dr. Richetta’s opinion and the mental residual functional
capacity adopted by the ALJ.

More specifically, the Commissioner

characterizes Dr. Richetta as having expressed only two opinions:
(1) Plaintiff is clinically depressed; and (2) Plaintiff cannot
return to work as a laborer.

Dr. Richetta did say the latter in

his August 15, 2011 letter as well as in his report.

While it is

not entirely clear what he meant by that, one implication would
be that, from a psychological standpoint, Plaintiff could not
perform the mental requirements of unskilled work - a conclusion
which the ALJ did not reach.

In the more comprehensive

evaluation report, Dr. Richetta said that Plaintiff was depressed
every day, experienced psychomotor agitation on a daily basis,
was fatigued every day, and had a diminished ability to think or
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concentrate nearly every day.

These symptoms caused distress or

impairment in the areas of social and occupational functioning.
The ALJ may have taken some of these matters into account, but
there is simply no way to tell that he viewed Dr. Richetta’s
opinion as consistent with the RFC finding made since he never
discussed the relationship between the two.

Further, the ALJ

refused to give much weight to the opinion of Dr. Orosz because
he did not view it as consistent with the other evidence of
record, but the limitations imposed by Dr. Orosz seem to track,
in substantial part, the views of Dr. Richetta, and it is not
clear how the ALJ would have analyzed Dr. Orosz’s opinion had he
compared it to Dr. Richetta’s.

Given these factors, the Court

cannot consider the error to be harmless, and a remand is
required so that the ALJ can follow the applicable regulation
concerning the consideration of all of the pertinent medical
opinions.
B.

The Hypothetical Question

The next statement of error is directed to the hypothetical
question posed to the vocational expert.

He contends that there

is a distinction between what was asked to the expert about
pushing and pulling (only occasional engaging in this activity
generally) and what the ALJ found in his decision (limiting
Plaintiff to occasional pushing and pulling involving the use of
the left leg).

Since they are different, Plaintiff contends that

the ALJ was not entitled to rely on the expert’s testimony about
the jobs Plaintiff could perform.
The Commissioner disputes that there is any discrepancy
between the limitation included in the hypothetical question and
the limitation expressed by the ALJ in his RFC finding.

The

Court agrees; the limitation on occasional pushing and pulling
generally encompassed a more specific restriction on doing those
activities with the left leg.

Given this conclusion, there is no

need to address the Commissioner’s alternative argument that the
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ability to push and pull is not generally relevant to sedentary
work, which is the level to which Plaintiff was restricted by the
ALJ’s residual functional capacity finding.
C.

Dr. Manuel’s Opinion

Plaintiff’s last argument takes issue with the ALJ’s
rejection of Dr. Manuel’s opinion.

He notes four different

limitations stated in that opinion, relating to changing
positions, taking unscheduled breaks, not being able to
concentrate for long periods of time, and the need to miss more
than four days of work per month, that were not directly
addressed by the ALJ, and asserts that the ALJ’s failure to weigh
each of these limitations independently is a legal error
requiring remand.

He also claims that the reasons given by the

ALJ for rejecting Dr. Manuel’s opinion are not supported by the
record.
It has long been the law in social security disability cases
that a treating physician's opinion is entitled to weight
substantially greater than that of a nonexamining medical
advisor or a physician who saw plaintiff only once.

20 C.F.R.

§404.1527(c); see also Lashley v. Secretary of H.H.S., 708 F.2d
1048, 1054 (6th Cir. 1983); Estes v. Harris, 512 F.Supp. 1106,
1113 (S.D. Ohio 1981).

However, in evaluating a treating

physician’s opinion, the Commissioner may consider the extent to
which that physician’s own objective findings support or
contradict that opinion.

Moon v. Sullivan, 923 F.2d 1175 (6th

Cir. 1990); Loy v. Secretary of HHS, 901 F.2d 1306 (6th Cir.
1990).

The Commissioner may also evaluate other objective

medical evidence, including the results of tests or examinations
performed by non-treating medical sources, and may consider the
claimant’s activities of daily living.
HHS, 25 F.3d 284 (6th Cir. 1994).

Cutlip v. Secretary of

No matter how the issue of the

weight to be given to a treating physician’s opinion is finally
resolved, the ALJ is required to provide a reasoned explanation
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so that both the claimant and a reviewing Court can determine why
the opinion was rejected (if it was) and whether the ALJ
considered only appropriate factors in making that decision.
Wilson v. Comm’r of Social Security, 378 F.3d 541, 544 (6th Cir.
2004).
The Court begins by looking at what the ALJ actually said
about Dr. Manuel’s opinion.

The ALJ determined that it

“generally lacked credibility.”

(Tr. 30).

That was so,

according to the ALJ, because (1) his conclusions about
Plaintiff’s ability to walk or stand differed from Plaintiff’s
statements of his ability in those areas; (2) his conclusion that
Plaintiff could sit for only four hours in a work day was not
supported by the record; (3) it was impossible to interpret Dr.
Manuel’s view about Plaintiff’s lifting capacity; and (4) the
form completed by Dr. Manuel was a “checkbox form.”
Consequently, the ALJ gave it “little weight.”

(Tr. 31).

This discussion of the only opinion from a long-term
treating physician is, contrary to the Commissioner’s argument,
not adequate to satisfy the ALJ’s regulatory obligation.

The

first reason proffered by the ALJ rests on only trivial
differences between Plaintiff’s statements and Dr. Manuel’s
opinion, and the statements related to a different time frame.
The third reason is simply a statement about an ambiguity in the
opinion, and given that Plaintiff was limited to sedentary work,
it is not a material ambiguity.

The fourth reason does not carry

a significant amount of weight, since ALJ’s often rely on
opinions from state agency reviewers which are also expressed on
“checkbox forms”; as the court stated in Coy v. Astrue, 2012 WL
5497850, *8 (N.D. Ohio Nov. 13, 2012), “[b]ecause such forms are
routinely provided to treating physicians to aid in disability
determinations, it makes little sense to allow ALJ's to
categorically ignore the information requested.”

Although an ALJ

may consider the form of the report and the reasons given as
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factors in his assessment, see, e.g., Lee v. Comm’r of Social
Security, 2013 WL 6116814 (N.D.Ohio Nov 20, 2013), where, as
here, the file contains a vast quantity of treatment notes from
the doctor who completed the form, it is questionable whether the
ALJ can use the format of the opinion as a persuasive basis for
rejecting it.
That leaves, essentially, the statement that the
restrictions on sitting are not supported by the record.

That

reason might support rejecting that particular restriction, but
not rejecting all of the opinion, which contains many other
limitations inconsistent with gainful employment.
discussed these limitations.

The ALJ never

While in some cases the failure to

address particular portions of a treating source opinion may be
harmless error, here, the failure to do so prevents either the
Plaintiff or the Court from understanding why those portions of
the opinion were rejected, which is a violation of the
articulation requirement set forth in §404.1527(c) as interpreted
in Wilson, supra.

This issue also supports Plaintiff’s request

for remand.
VII.

Recommended Decision

Based on the above discussion, it is recommended that the
Plaintiff’s statement of errors be sustained to the extent that
the case be remanded to the Commissioner for further proceedings
pursuant to 42 U.S.C. §405(g), sentence four.
VIII.

Procedure on Objections

If any party objects to this Report and Recommendation,
that party may, within fourteen (14) days of the date of this
Report, file and serve on all parties written objections to those
specific proposed findings or recommendations to which objection
is made, together with supporting authority for the objection(s).
A judge of this Court shall make a de novo determination of those
portions

of the report or specified proposed findings or

recommendations to which objection is made.
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Upon proper

objections, a judge of this Court may accept, reject, or modify,
in whole or in part, the findings or recommendations made herein,
may receive further evidence or may recommit this matter to the
magistrate judge with instructions.

28 U.S.C. §636(b)(1).

The parties are specifically advised that failure to
object to the Report and Recommendation will result in a
waiver of the right to have the district judge review the
Report and Recommendation de novo, and also operates as a
waiver of the right to appeal the decision of the District
Court adopting the Report and Recommendation.

See Thomas v.

Arn, 474 U.S. 140 (1985); United States v. Walters, 638 F.2d
947 (6th Cir. 1981).
/s/ Terence P. Kemp
United States Magistrate Judge

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